Off the Kuff Rotating Header Image

health insurance

Hey, let’s file another lawsuit to kill Obamacare!

Sure, why not?

It’s constitutional – deal with it

Texas is suing the federal government over President Barack Obama’s landmark health law — again.

In a 20-state lawsuit filed Monday in federal court, Attorney General Ken Paxton argued that after the passage of the GOP’s tax plan last year — which also repealed a provision of the sweeping legislation known as “Obamacare” that required people to have health insurance — the health law is no longer constitutional.

“Texans have known all along that Obamacare is unlawful, and a divided Supreme Court’s approval rested solely on the flimsy support of Congress’ authority to tax. Congress has now kicked that flimsy support from beneath the law,” Paxton said in a statement Monday. “With no remaining legitimate basis for the law, it is time that Americans are finally free from the stranglehold of Obamacare, once and for all.”

Texas has sued the government more than 60 times since 2008, and those efforts haven’t ceased since the Obama administration gave way to that of President Donald Trump last year.

I couldn’t find any other stories about this, so I can’t tell you if any actual legal experts think there’s merit to this. But you know, if Super Legal Genius Ken Paxton thinks it’s a winner, then who am I to argue?

UPDATE: Ian Millhiser calls it “risible” and “‘Gotcha’ litigation”, but notes it was filed in the court of that judge who has issued national injunctions based on Ken Paxton’s flights of fancy before, so who knows.

SCOTUS declines to hear Houston’s appeal of same-sex marriage lawsuit

Disappointing, but nowhere close to the end of the line.

Denying the city of Houston’s request, the U.S. Supreme Court will not review a June decision by the Texas Supreme Court, which ruled that the landmark decision legalizing same-sex marriage does not fully address the right to marriage benefits.

The high court on Monday announced it would not take up the case — which centers on Houston’s policy to provide spouses of gay and lesbian employees the same government-subsidized marriage benefits it provides to opposite-sex spouses — just months after the city of Houston filed its appeal, arguing the state court’s June decision “disregarded” precedent.

In that decision, the Texas Supreme Court threw out a lower court ruling that said spouses of gay and lesbian public employees are entitled to government-subsidized marriage benefits, and it unanimously ordered a trial court to reconsider the case. The ruling found that there’s still room for state courts to explore “the reach and ramifications” of marriage-related issues that resulted from the legalization of same-sex marriage.

That’s despite the U.S. Supreme Court’s landmark ruling in Obergefell v. Hodges, which legalized same-sex marriage nationwide in 2015 and noted that now-defunct marriage laws were unequal in how they denied same-sex couples the benefits afforded to opposite-sex couples.

See here for the previous update. What this means is that the district court needs to reconsider the lawsuit in light of the state Supreme Court’s assertion that Obergefell may have made marriage universal, but it did not specifically address the question of whether same-sex marriages are entitled to the same actual rights and benefits as traditional marriage. If all this sounds to you like unfathomable pinhead-ery, in which the concept of marriage is divided into an upper class and an underclass based on biology and the easily offended sensibilities of a couple of old coots, you’re correct. But this is where we are. The city will continue to provide spousal benefits for all its married employees, as it has the right to do, at least for now. The Chron, the Dallas Observer, the Texas Observer, and the Current have more.

Just a reminder, CHIP is still running out

In case you were wondering.

Nearly 400,000 Texas children could lose healthcare coverage in late January unless Congress renews funding for the Children’s Health Insurance Program, a decades-old federal program that provides health care to millions of children across the country.

Texas officials have asked the federal government for $90 million to keep CHIP alive through February, but without that funding, letters could go out later this month from state officials alerting parents that their children’s benefits could be at risk.

Congress allowed the program to expire on Sept. 30, leaving Texas and other states with dwindling coffers. CHIP typically receives bipartisan support, but lawmakers have failed to agree in recent months on how to fund it.

“We’re closely monitoring congressional efforts to reauthorize the program and are hopeful that it will be extended prior to the exhaustion of our current allotment,” said Carrie Williams, a spokeswoman with the Texas of State Health Services. “Based on our conversations with [Centers for Medicare and Medicaid Services] … we are confident that a redistribution of funds will happen.”


If the state doesn’t get additional funding soon, it will have to begin shutting down the program, officials said. State law requires termination notices go out to parents a month before they lose coverage; those letters would likely go out days before Christmas.

Catherine Troisi, an infectious disease epidemiologist at the University of Texas School of Public Health in Houston, said many children on CHIP have chronic diseases and rely on regular, monthly appointments.

“That’ll put a lot of stress on families who don’t know if they are going to be able to continue to get that kind of care,” she said.

Unlike other states, Texas doesn’t currently have any plans to fund the program. If the state runs out of money, it will send all CHIP recipients to the federal government’s health care marketplace.

See here and here for the background. This is 100% the fault of Congressional Republicans, who let this lapse during their months-long obsession with Obamacare repeal. They’re not paying attention to it now because of the need to cut taxes for millionaires. Better grow up to be rich, kids. It’s your only hope.

Houston’s health care costs

Because dealing with pensions wasn’t enough.

Taxpayers also face a $2.1 billion liability for retiree health care costs in the coming decades, and Houston – like many state and local governments – has not set aside a penny to pay for those promises.

This burden is the city’s “next major long-term fiscal challenge,” according to PFM, a financial analysis firm Houston has hired to recommend ways to shore up its long-shaky books.

Turner said any financial hurdle concerns him, but the far-larger pension problem took precedence, as the city’s recovery from Hurricane Harvey will do now.

“That’s one of many issues that we have to address, but I am very much aware of it,” Turner said. “Let’s just say we tackled the biggest item and then we’ll tackle the other ones as we go. One step at a time.”

These costs for what are known as “Other Post-Employment Benefits” – OPEB for short – have become a growing issue for local governments, thanks to rising health care expenses and an aging population and public workforce. In Houston, retirees comprised a third of all the city’s health care beneficiaries in 2012, up from 18 percent in 1994.

A shift in accounting rules also has played a key role. In 2008, the Governmental Accounting Standards Board began requiring governments to report their retiree health care costs, not as an annual operating expense, but in the same manner as pensions: Trust funds fed by payments from the city and workers on which investment earnings accumulate to pay for benefits over the next few decades.

Houston and many of its peers have never stopped treating the expense as simply an annual bill to be paid, however.

I know nothing about accounting, so I don’t understand the reasoning behind that 2008 change in standards. Be that as it may, the city has a lot more flexibility here in that the Mayor can order changes in the health insurance system. Mayor Parker did exactly that a few years ago, raising premiums and ordering retired employees to enroll in Medicare at age 65. That cut costs by quite a bit at the time, but they have since climbed back up, as health care costs are wont to do. Ultimately, of course, this is a problem that is too big for Houston to solve. Any solution to control health care costs necessarily involves controlling how much doctors and hospitals get paid. In the meantime, entities like Houston will do what they can to manage their own costs, but they’re going to need help in the long run.

By the way, CHIP is still running out

Just in case you were wondering.

Advocates say Texas will run out of funding for the Children’s Health Insurance Program sooner than they thought. The program, which Congress failed to reauthorize last month, covers nearly 400,000 children from working-class families in the state.

“It’s expected that Texas will run out of CHIP funding in January,” said Adriana Koehler, a policy associate with the advocacy group Texans Care for Children. “With the holidays coming up in the next few months, we really need Congress to get the job done now.”

Just a few months ago, advocates said it was unclear when the state would run out of CHIP funds. Some advocates expected the state had until next September; others said funds would run out in February.

Carrie Williams, a spokesperson with the Texas Health and Human Services Commission, said the funding could run out as early as January.

Williams said the agency pushed up the timeline because of reduced income from co-pays. After Hurricane Harvey hit, the federal government waived co-pays and enrollment fees for CHIP recipients. That meant less money was coming into the program than expected.

“So funds may be exhausted a bit sooner than February,” she said.

See here for the background. One might think that such a fanatically and performatively “pro-life” state like Texas would be full of leaders who would care deeply about 400,000 children losing access to health care, but one would have to be deeply naive to believe it. At this time, it looks like the best bet for action will be CHIP reauthorization as a part of a successful government shutdown hostage negotiation. There’s a sentence I hope I never have to type again. Remember when we had a government that was interested in actually, you know, governing? Those were the days, I tell you.

Sure would be nice if we could not kill CHIP

Just a thought.

Insurance coverage for more than 390,000 Texas children and pregnant women is in jeopardy after Congress failed to renew authorization for a federal program.

Congressional authorization for the Children’s Health Insurance Program, which provides low-cost health insurance for children from low- and middle-income families, expires Sept. 30.

Without federal funding, Texas has enough money for CHIP to last until February 2018, according to estimates by the Texas Health and Human Services Commission. However, federal lawmakers say they’re working on a plan to continue the program before funding runs out for Texas.

“States don’t want to have to disenroll their kids,” said Maureen Hensley-Quinn, senior program director at National Academy for State Health Policy, a non-partisan group that advises states on health policy. But “there may come a time when [they] have to send families letters” letting them go.

Some other states are in worse shape than we are, not that that’s much consolation. You’d think it would be – what’s that word? – pro-life to not want a program that keeps 400,000 children healthy to not go down the budgetary toilet. I’d feel more reassurance if there were some public statements about this from state leaders, but you know how that goes. As a wise man once said, hold on to your butts. TPM and the Chron have more.

The “death by a thousand cuts” strategy

How To Kill A Health Insurance Market, Non-Legislative Division:

It’s constitutional – deal with it

The move by the White House to quietly end the contracts of two companies key to assisting people enrolling for insurance under the Affordable Care Act caught Houston health advocates off guard – but not by surprise.

Given the temperature in Washington these days and efforts by Congress and President Donald Trump’s administration to let the law fail, they said it was just the latest in a string of actions to sabotage the law known as Obamacare.

“It’s clearly by design,” said Elena Marks, president and CEO of Episcopal Health Foundation and proponent of the ACA and its impact on the uninsured and health access for Texans.

Last week, contracts for Cognosante LLC and CSRA Inc., which helped in signup efforts for the past four enrollment periods in 18 cities, including Houston, were not renewed for a final option year, the Associated Press reported.


Tiffany Hogue, policy director for Texas Organizing Project, an advocacy group for low- and moderate-income Texans, said she had not heard about the contract cancellations but felt, “in the scheme of things it’s not really a surprise.”

“The intent is to let the law die,” she said.

She said the administration from its first day has seemed determined to undercut the law. Hours after inauguration, the new president signed an executive order directing federal agencies to loosen any regulations surrounding the law that were considered “burdensome.”

Days later, as the 2017 enrollment period was coming to a close, the new U.S. Department of Health and Human Services withdrew funding for the final advertising push traditionally aimed to lure a surge of last-minute enrollees.

Additionally, the 2018 enrollment period is being shortened, cut in half to run from Nov. 1 to Dec. 15 instead of until Jan. 31.

The idea is to push enrollment down so that when it does go down you can point at it and say “look, see, it’s in a death spiral” and then take more obvious action to finish the job. Which may not be necessary now, but it’s Plan B as needed. And all those people who will be sicker and poorer as a result? Just a bit of collateral damage. I’m sure they’ll understand.

Who wants to give Greg Abbott power over their health insurance?

I sure don’t, but then I’m not the median voter in this state.

The Senate Republicans’ health care plan would give governors virtually unchecked discretion over health insurance plans. In red states with governors hostile to health care expansion, such as Texas, that could mean loss of coverage and skyrocketing costs for patients. Governor Greg Abbott would be able to determine what is covered in Texans’ health insurance, and how much they pay.

Nestled near the bottom of the Senate legislation is a provision that would allow governors and state insurance commissioners to waive health insurance requirements without the consent of the state’s legislative body. The bill would require federal officials to approve proposed changes as long as they don’t add to the deficit, even if they would result in price increases or coverage losses for constituents.

“It’s very easy to spend less on health care, you can cut benefits and save a lot of money,” said Stacey Pogue, senior policy analyst at the left-leaning Center for Public Policy Priorities. “It’s kind of shocking the degree to which this waiver includes no insurance standards. The state could submit a waiver without legislative approval, kick millions off their insurance and the federal government would have to approve it.”

These waivers could include allowing insurers to stop covering essential health benefits such as maternity care and emergency services, or getting rid of caps on out-of-pocket costs.


The nonpartisan Congressional Budget Office said in a report Monday that most of the people affected by these additional waivers would be in states that limit the health benefits insurers are required to cover. This would lead to lower premiums overall, but coverage for high-cost services like maternity care and mental health care “would become extremely expensive,” CBO said. The waivers could also allow states to use the federal funds for purposes outside health care, the agency notes.

Once the waiver is granted it can’t be taken back for several years, even if there’s evidence that a state egregiously misused its funds. Even if “state officials blow the Obamacare money on cocaine and hookers, there’s apparently nothing the federal government can do about it,” wrote University of Michigan Law School professor Nicholas Bagley.

This topic was discussed on a recent Slate podcast called the Trumpcare Tracker. As we know at this point, the Senate bill got pulled from consideration after a tidal wave of criticism, but there’s plenty of time for something nearly as hideous to achieve majority support. In the meantime, as we try to adjust to a universe in which Ted Cruz is attempting to play dealmaker, keep an eye on this. Abbott likes power, and he’s not nearly as susceptible to public opinion as some Republican Senators are. If we get to a point where this is a live possibility, nothing good will result from it.

Birth control by mail

This is interesting, but doesn’t address a couple of key points.

About half the counties in Texas don’t have the number of public clinics required to meet the contraceptive needs of the population. So Nurx, an at-home birth control delivery app, decided to give women in the state the option to get birth control whenever they want and without ever needing to step into a clinic or even physically see a doctor.

Starting today, those in the Lone Star State will be able to tap the Nurx app and get contraceptives delivered straight to their door.

While Texas isn’t the only state with a giant “contraceptive desert,” or an area without at least 1 clinic to every 1,000 women in need of publicly funded contraception, it is certainly the biggest area of land in the United States not meeting these needs.

And with Trumpcare looming, and Trump’s recent “Religious Freedom” order, which allows businesses to deny birth control coverage based on religious reasons, many women could lose access to their publicly funded birth control pills and even more publicly funded clinics could go under, leaving a large and vulnerable population wide open to other, possibly dangerous methods of preventing birth.

As the story notes, there are other birth control delivery services on the market, but Nurx appears to be the only one operating in Texas. The legislative session is over, but I can easily imagine someone taking aim at this in a future session, though to be fair I thought there would be a reaction to the Mexican abortion option, too. Be that as it may, the real issue here isn’t lack of places to buy the pill, it’s the increasing restrictions on insurance coverage for it, which will become a crisis if Trumpcare passes in any form. It doesn’t matter what your delivery options are if you can’t afford to buy it in the first place. Still, it’s good that Nurx exists, and I hope it has some company in the market soon. I also hope it doesn’t have a large chunk of that market taken away from it by Congress.

A tale of two Congressmen

Rep. Ted Poe has a status update.

Rep. Ted Poe

U.S. Rep. Ted Poe, a Republican from Humble, announced Sunday afternoon he is resigning from the hardline Republican group that helped sink GOP attempts to repeal former President Obama’s 2010 health care law.

“I have resigned from the House Freedom Caucus. In order to deliver on the conservative agenda we have promised the American people for eight years, we must come together to find solutions to move this country forward,” Poe said in a statement. “Saying no is easy, leading is hard, but that is what we were elected to do. Leaving this caucus will allow me to be a more effective member of Congress and advocate for the people of Texas.”

“It is time to lead,” he added.


The Freedom Caucus does not publicize members, but several Texans and their offices have confirmed their membership to the Tribune: U.S. Reps. Joe Barton of Ennis, Louie Gohmert of Tyler and Randy Weber of Friendswood.

One and a half cheers for this, I guess. I mean, any time you can disassociate yourself from the likes of Barton, Gohmert, and Weber, you should, but then one may wonder what you were doing hanging out with them in the first place. Also, too, while we agree that the Freedom Caucus is a stain on the country, if the problem you have with them is their resistance to voting for a bill that would have stripped health care for 24 million Americans in order to fund a massive and everlasting tax cut for the rich, well, I don’t think “kudos” is the right word for that. Rep. Poe has his good points, but anything good one can say here is damning with very faint praise.

And then there’s Rep. John Culberson.

Rep. John Cumberson

A day after House Republicans’ efforts to repeal Obamacare collapsed, U.S. Rep. John Culberson, R-Houston, did not back away from the GOP’s years-long push to scrap the law.

“The only way to fix it is to replace it,” Culberson said before a rowdy town hall audience of several hundred people, some of them chanting “Fix it!”

In an interview before the town hall, Culberson confirmed that he would have voted yes on the American Health Care Act, which House Speaker Paul Ryan pulled from the floor Friday when it became clear there was not enough support for it. Culberson said the legislation would have “repealed about 70 percent of Obamacare, and that’s good enough for me.”

“There’s always going to be another opportunity,” Culberson said. “We’re early in the congressional session, and there’s plenty of time. And we’re going to have an opportunity to do tax reform, and then I’m going to do everything in my power to get us back on track to get Obamacare repealed.”


After the town hall, attendees said they largely disagreed with Culberson on the issues, but some gave him plaudits for holding the event in the first place. Culberson ended up taking 20-some questions over an hour and a half, allowing audience members to read their questions to him and often wading into the audience to meet them.

“Begrudgingly I give him a B for sticking around and actually engaging with people,” said Frank Ortiz, a 43-year-old graphic designer from Houston. “As far as content, I’d probably give him a D+/C-. I felt he held to a lot of the conservative Republican line on a lot of issues.”

And a golf clap to Culberson for facing his none-too-happy constituents, unlike Ted Poe, among others. I lost count of the number of places I saw advertising this town hall and exhorting people to show up for it. The dynamic of these sessions was a fix of the Republicans’ own making, and they deserve no sympathy for it, but it still can’t have been a pleasant experience. Culberson got some cheers when he stated opposition to Trumpian things and boos when he didn’t – he was a Yes on ACA repeal – but I wouldn’t count on any of that to affect his behavior going forward. He is who and what he is, and he’ll be that for as long as he’s in office. The Chron and the HuffPo have more.

Of course Obamacare repeal would have a big negative effect on Texas

I mean, duh.

Right there with them

As many as a half-million Texans could become uninsured under the Republican plan to replace the Affordable Care Act, wiping out at least half the gains the state has made in reducing the number of uninsured residents in recent years, according to health care analysts.

Texas still has the nation’s highest percentage of people without health insurance, but that uninsured rate has dropped significantly, falling to about 19 percent from 26 percent over the past four years. About 1 million more Texans gained coverage under the health care overhaul known as Obamacare, which became law in 2010.

Under the Republican plan to repeal and replace the health care law, 500,000 could lose coverage by 2020, either through changes in federal assistance to purchase coverage and Medicaid, the government health care program for the poor, or the end of individual mandates that require people to have insurance, said Ken Janda, president and CEO of Community Health Choice whose company offers insurance plans on the federal exchanges.

Analysts such as Vivian Ho, health economist at Rice University’s Baker Institute for Public Policy, advocates like Elena Marks, CEO of Houston’s Episcopal Health Foundation, and insurers, such as Molina Healthcare, confirmed Janda’s estimates.

“Certainly, Texas is going to have more uninsured people again,” Janda said. “I don’t see much positive coming out of Congress.”


Dr. Mario Molina, CEO of the California-based Molina Healthcare, a Fortune 500 company, said in an interview he cannot yet commit that his company will be in the Texas market next year on the exchange because of the uncertainty that currently exists surrounding the promise to repeal and replace the ACA. Currently his company is one of only three insurers who offer ACA coverage in Houston.

“I am very nervous,” he said. “There is little that Congress has done so far that indicates the insurance market will be stable.”

Blue Cross and Blue Shield of Texas, which offers plans on the exchange in every Texas county, including Harris, also expressed concerns about the uncertainty of federal health care policy.

“It’s imperative that we have market stability and regulatory certainty,” the company said in an emailed statement. “We will make decisions about our product offerings for 2018 once we have more information about any legislative or regulatory changes that will be made impacting the individual health insurance markets.

Health care providers, meanwhile, worry what will happen if hundreds of thousands of Texas residents lose insurance. Katy Caldwell, executive director of Houston’s Legacy Community Health, which serves many low-income patients, said fewer insured patients will mean longer wait times as clinic staff become overwhelmed. But a jump in the uninsured rate would create more than inconvenience, she said.

“The thing that really concerns me is people foregoing their medication. I hear it all the time now: ‘I have to choose between food and my medicine’ or ‘I cut my pill in half because I can make a 30-day supply last 60 days,'” Caldwell said. “This has every potential to get worse.”

Honestly, I think that half million estimate is very much on the low end, possibly the optimal scenario under the Ryan bill, which to be sure has no obvious path forward at this time. The provision that would not only freeze Medicaid enrollments but prevent anyone who fails to re-enroll for any reason from ever re-enrolling would surely force many more people off, just as the six-month re-enrollment period for CHIP that was passed by the 2003 Legislature contributed to so many more children going without health insurance. And all that is before we consider the possible chaos in the broader healthcare market. So yeah, if a few years from now we come out of this with only a half million people having lost coverage, I’d consider that to be better than I expected.

Supreme Court hears ridiculous same-sex marriage appeal

Was this trip really necessary?

Same-sex couples are entitled to the same treatment as opposite-sex couples, a lawyer for the city of Houston argued before the Texas Supreme Court on Wednesday in a case challenging the city’s benefits policy for married same-sex couples.

As part of Texas Republicans’ ongoing fight against same-sex marriage, justices of the state’s highest civil court heard arguments in a case centered on whether Houston and other governmental entities are required by the U.S. Supreme Court’s landmark 2015 ruling in the case of Obergefell v. Hodges to extend taxpayer-subsidized benefits to same-spouses of government employees.

In Obergefell, the U.S. Supreme Court ruled that bans on marriages between couples of the same sex are unconstitutional and that states must recognize same-sex marriage as legal. Following that ruling, public employers in the state quickly extended benefits for same-sex spouses of public employees.

Arguing that interpretation is too broad, opponents of same-sex marriage have taken up a challenge against Houston’s policy, hoping the Texas court will issue an opinion that narrows the scope of the ruling because they believe marriage benefits are not a fundamental right.

But Douglas Alexander, the lawyer that defended Houston’s benefits policy, told the court on Wednesday that arguments against benefits to same-sex couples are moot under Obergefell’s guarantee that all marriages be equally regarded.

“What we’re saying is that if you extend spousal benefits to opposite sex couples then under Obergefell you also have to extend it to same sex,” Alexander told the court. “Not because there’s a fundamental right to employment benefits or spousal benefits but because there’s a fundamental right that both of those marriages be treated equally.”

See here for the background. I’m not an attorney, but Martin Siegel is. I’m going to hand the microphone to him for a minute:

The Republican officials’ argument depends on minimizing Justice Anthony Kennedy’s landmark opinion in Obergefell, but that opinion rules out their position. The opinion cites the many privileges afforded married couples – favorable tax treatment, property and inheritance rights, hospital access, health insurance, and so on – and expressly condemns the “material burden” that occurs when same-sex couples “are denied the constellation of benefits that the States have linked to marriage.” In fact, one of the specific state laws struck down by the decision concerned one of these benefits: a Michigan law that prevented plaintiffs April DeBoer and Jayne Rowse from adopting and raising special-needs children as married parents in the same family, rather than as separate individuals with no legal relationship.

As any lawyer knows, the opinions of the Supreme Court and the language the justices use in them matter greatly. Day in and day out, lower courts and lawyers apply both to new disputes that, while different factually, are nonetheless covered by the text and clear meaning of earlier opinions. The claim that Obergefell doesn’t resolve whether marriage-related benefits must be provided equally would puzzle any second-year law student.

A second argument advanced specifically by Republican state senators and representatives is that, because the Constitution doesn’t require local governments to give employment benefits to anyone, straight or gay, Texas can give them to one but not the other. Otherwise, Texas would be “subsidizing” gay marriage.

This willfully misses the point. It’s not that gay employees have a constitutional right to employment benefits or subsidies; it’s that they have a constitutional right to equal treatment. Public education is analogous. The U.S. Constitution doesn’t require states to provide public education, but if a state chooses to do so, it can’t segregate students by race. In Obergefell, the Court specifically applied the Fourteenth Amendment’s equal protection clause to strike down laws outlawing gay marriage because, under those laws, “same-sex couples (were) denied all the benefits afforded to opposite-sex couples.”

Education provides a useful comparison, too, because the Republican officials’ miserly approach to Obergefell recalls southern resistance to Brown v. Board of Education in the 1950s and ’60s. Through creative evasions and court battles, officials fought for years to preserve Jim Crow despite the Supreme Court’s mandate to integrate with “all deliberate speed.” In some places, they closed schools and other public accommodations rather than open them to everyone – just as the Republican legislators now justify denying employment benefits to gay spouses by suggesting they could constitutionally deny them to everyone.

Mark Joseph Stern, who is apparently on a tour of Texas this week, thinks the Supreme Court will ultimately dismiss this on procedural grounds. Whatever happens here, the plaintiffs in this case and their Republican enablers are on the losing side of the argument. There is no justification for what they are trying to do. The Supreme Court should have stood by their original decision to not hear this case, but failing that the least they can do is follow the law and give these plaintiffs the stinging defeat they so richly deserve. Texas Monthly has more.

State Supreme Court hears same sex marriage appeal today

Gird your loins.

Almost two years after same-sex marriage was legalized nationwide, Texas Republicans are still fighting the ruling — and they’re getting another day in court.

The Texas Supreme Court is set to hear oral arguments on Wednesday in a Houston case challenging the city’s benefits policy for married same-sex couples. Though such policies have been in place since the U.S. Supreme Court’s landmark 2015 ruling in the case of Obergefell v. Hodges, Texas conservatives are betting the Houston case opens up a path to relitigate the high court’s decision.

“This particular opinion will go to the U.S. Supreme Court and is a potential vehicle for overturning Obergefell given the changing composition of the court,” said Jared Woodfill, one of the lawyers leading the lawsuit filed against Houston on behalf of two taxpayers, and a prominent conservative activist in the city. “Ultimately, I would like to see Obergefell overturned.”

At the center of the Houston case is whether Obergefell, which legalized same-sex marriage across the country, requires the city and other governmental agencies to extend taxpayer-subsidized benefits to same-sex spouses of government employees.

In Obergefell, the U.S. Supreme Court in 2015 ruled that bans on marriages between couples of the same sex are unconstitutional and that states must recognize same-sex marriage as legal. Following that ruling, public employers in the state quickly extended benefits for same-sex spouses of public employees.

But opponents argue that interpretation was far too broad.

Obergefell may require states to license and recognize same-sex marriages, but that does not require states to give taxpayer subsidies to same-sex couples — any more than Roe v. Wade requires states to subsidize abortions or abortion providers,” lawyers challenging the Houston policy wrote in a filing with the Texas Supreme Court.

They argue that the right to marry does not “entail any particular package of tax benefits, employee fringe benefits or testimonial privileges.” (In a separate case against the state’s now-defunct ban on same-sex marriage, the Texas Attorney General’s office actually argued that marriage is a right that comes with benefits the state is entitled to control.)


For observers, the court’s reversal was an unusual move. And it’s difficult to ignore the politics involved, considering that the legal issues in the Houston case seem to be “tap dancing around what is already a fairly established right,” said Brandon Rottinghaus, a political science professor and Texas Constitution expert at the University of Houston.

“There has been an emerging litmus test for state judges that wasn’t necessarily so apparent 20 years ago,” Rottinghaus said. “Republicans have party control of the court but not necessarily ideological control, and I think these kinds of cases are those that can be used in the future to be a bulwark for conservative activists looking to change even a Republican court to a more conservative direction.”

See here and here for the background, and here for an amicus brief filed on behalf of Equality Texas and a married couple who would be negatively affected by a ruling for the plaintiffs. The Supreme Court is gonna do what the Supreme Court is gonna do, and I’m not in a position to analyze the legal minutiae. What I will emphasize is that not only does this lawsuit go against any common sense idea of fairness – if you’re married, you’re married, and you have the same rights and responsibilities as anyone else who is married; I do know that the underpinning of the Obergefell ruling was a rejection of this argument that same-sex couples are somehow “less than” opposite sex couples – but it’s well against the mainstream of public opinion. Even before Obergefell was handed down, a plurality of Texans supported same sex marriage. I can’t find any more recent results, mostly because it’s not even worth polling on these days. Corporate America has been providing benefits to same-sex couples for years now. This is a settled matter for everyone except pea-brained individuals like Jared Woodfill. I can only hope the Supreme Court is better than this.

A telemedicine breakthrough

This is good to see.

Sen. Charles Schwertner

A years-long fight over the use of telemedicine in Texas appears to have been resolved, with medical and industry groups agreeing to compromise legislation that, if it passes, could benefit patients, especially those in rural areas.

Senate Health and Human Services Committee Chairman Charles Schwertner, a Georgetown Republican and orthopedic surgeon, confirmed the deal on Wednesday and said he will sponsor the legislation to resolve the longstanding feud over rules to allow doctors to see patients electronically.

“I think we will have a bill very soon,” he said, noting there could be “considerable benefits” to patients if the legislation is approved by lawmakers — as well as possible benefits to taxpayers if the electronic doctor visits can help curb spiraling costs for some state-funded healthcare programs.

Ironically, despite the heated controversy over telemedicine for most Texans, the concept of electronic visits was adopted successfully two decades ago in the Texas prison system in a program that is now credited for saving hundreds of millions of dollars.

While the announced agreement clears the way for Schwertner’s bill to move forward in the Legislature to passage, opposition could still materialize that could delay — or perhaps derail — it. Last session, well over a dozen bills were filed to allow telemedicine in Texas, but none became law, officials said.


While providing few details on the settlement, Schwertner said Wednesday he believes the issues of disagreement have been addressed. Others familiar with the talks agreed.

They said doctors wanted to ensure proper patient care was maintained and that they would receive payment for services provided remotely. Health insurance providers who had supported use of new technologies to improve care and cut costs wanted to ensure proper payments would be permitted. And companies that offer telemedicine services wanted to ensure they could operate without onerous restrictions.

“This is significant, and will be a winner for everyone,” said Nora Belcher, executive director of the Texas e-Healthcare Alliance, a telemedicine trade group. “This is going to get us a fair and open market for telemedicine in Texas.”

Telemedicine isn’t a panacea, but it’s a worthwhile tool to have in the bag, and it should be regulated in a reasonable fashion that allows access while still prioritizing level of care and patient safety. I appreciate the work that Sen. Schwertner has done here to bring the stakeholders together and work something out. I was curious about one thing, because as we know there is an ongoing lawsuit by a telemedicine company called Teladoc against the state of Texas over its current regulations. The story did not mention this litigation, so I sent a query to Sen. Schwertner’s office to ask if one intent of his bill was to resolve that lawsuit. The response I received was “It is our hope that by passing an agreed-to bill between the various stakeholders, this legislation will eliminate much of the legal ambiguity currently surrounding telemedicine and create a clear, fair, and consistent regulatory environment that will allow for the provision of telemedical services while ensuring the safety of Texas patients.” My interpretation of this is that they hope the bill will allow for that dispute to be resolved, but they can’t make it happen on their own. Anyway, this will be worth watching both during the session and (if the bill passes) afterwards.

Transgender health directive halted

One last kick in the rear from the annus horribilis that was 2016.

A Texas judge issued an injunction Saturday against a federal mandate aimed to protect transgender people, finding that the federal health rule violates existing law.

The preliminary injunction, granted by U.S. District Judge Reed O’Connor, is in response to a lawsuit filed by Texas, on behalf of religious hospital network Franciscan Alliance, and four other states in August.

In the suit, Texas and the other plaintiffs argued that a federal regulation prohibiting discrimination against transgender individuals in certain health programs would force doctors “to perform and provide insurance coverage for gender transitions and abortions, regardless of their contrary religious beliefs or medical judgment,” according to the order. The plaintiffs also claim they could be required to perform gender transition procedures on children. Texas asked the court to block the federal government from enforcing the regulation.

Transgender rights activists have refuted claims that the health rule prevents doctors from using sound medical judgment, arguing instead that it clarifies that health care providers can’t deny services or insurance to someone because that person is transgender.

In Saturday’s ruling against the federal government, the judge indicated that a preliminary injunction was appropriate because the federal health mandate violates the Administrative Procedure Act, which governs how federal agencies develop and issue regulations, and likely violates federal religious freedom protections for the plaintiffs that are private entities.

“While this lawsuit involves many issues of great importance—state sovereignty, expanded healthcare coverage, anti-discrimination protections, and medical judgment—ultimately, the question before the Court is whether Defendants exceeded their authority under the ACA in the challenged regulations’ interpretation of sex discrimination and whether the regulation violates the Religious Freedom Restoration Act as applied to Private Plaintiffs,” the order reads.

See here and here for the background. The Chron adds on.

Ezra Young, director of Impact Litigation at Transgender Legal Defense and Education Fund, challenged both rulings as misinterpretations of federal law. He called Saturday’s “flatly contrary to law,” “morally repugnant,” and predicted it would be overturned on appeal.

“The U.S. Supreme Court has long recognized that sex discrimination takes many forms, and our nation’s expansive and unyielding nondiscrimination laws necessarily reach sex discrimination whenever and wherever it strikes,” Young said in a statement Saturday.


Young said the impact could be damaging to transgender people seeking care, who for years have faced denial of insurance benefits or access to doctors they chose because of their gender identity. Young said while some states have similar rules protecting transgender rights, Obama’s move was “groundbreaking.”

“The benefit of the federal law is it sort codifies things and it gave one unifying rule all across the country,” he said.

I’m sure this will be appealed. At least with the intervention of the ACLU, the defense of the lawsuit can’t be tanked by a corrupted Justice Department. I don’t know enough to speculate about the legalities going forward, but I do know this: Some day, and I hope to live long enough to see it, people will look back at the actions of Ken Paxton and the other obstructers of progress, and wonder what the hell they were doing. Paxton and those like him will be seen as the George Wallace and Bull Connor of the early 21st century. I don’t know when that day will come, I just know that it will.

An awful lot of Texans could lose health insurance

It sure will suck to be them.

It's constitutional - deal with it

It’s constitutional – deal with it

New public-health studies warn that hasty congressional action toward repealing the Affordable Care Act could have dire consequences for the poor and uninsured both in Texas and nationwide.

The dismantlement of portions of the law, known as Obamacare, without a comparable substitute could mean 2.6 million more Texans would be uninsured, raising the total to 6.9 million by 2019, the Urban Institute, a Washington, D.C.-based think tank for economic and social policy, said Wednesday in a new report.

Texas already leads the nation in the number of uninsured.

“There is good deal of fear,” said Vivian Ho, a health economist at Rice University’s Baker Institute of Public Policy, who has tracked the health care law’s implementation in Texas. “The uninsured rate will be going up under any scenario.”

The fallout from even a partial congressional repeal through a process known as budget reconciliation could also nearly double the national uninsured rate to 21 percent by 2019, the report found. That would be higher than the rate before the ACA went into effect.


“The rush for repeal, certainly without replacement, is a huge risk for the health and financial stability for Texas. Not just for the poor but for everyone,” said Stacey Pogue, a senior policy analyst for the Center for Public Policy Priorities.

“We don’t just go back to the uninsured rate before the Affordable Care Act,” she said, “the entire individual market becomes destabilized.”

There are two things you can be sure of. One is that any replacement scheme will cover fewer people than are covered now. That’s because Republicans want to cut taxes, and if that means a bunch of people lose access to health care, well, too bad for them. And two, our state government does not care at all about the uninsured population. They’ve had fifteen years to do something about it, and the only thing they have ever done is make cutbacks. If this is what you voted for, then congratulations, you’re gonna get it.

From the “Don’t know what you’ve got till it’s gone” department

People are signing up for health insurance plans while they still can.

It's constitutional - deal with it

It’s constitutional – deal with it

For years the backers of the Affordable Care Act have fretted over how best to stimulate insurance enrollment on the exchanges so the law could work as designed. They might have finally found a way from the unlikeliest of sources: the election of Donald Trump as president.

During the campaign, Trump and Republicans in Congress vowed to immediately “repeal and replace” the health care law known as Obamacare, calling it a failure. Yet now that dismantlement is possible and maybe even likely, people across Houston and the nation are rushing to lock in coverage for next year.

A record 100,000 Americans signed up the day after the election and one company offering plans in Houston said business continues to be “brisk.” The enrollments continued Monday at places like the Ahmed and Roshan Virani Children’s Clinic in west Houston.

“He wants to get rid of it, so that’s why I’m here,” Dishae Wimbush, a self-employed mother of three young sons, said just after 9 a.m.


Enrollment for 2017 began Nov. 1, a week before the election. It will end Jan. 31, 11 days after Trump is inaugurated. At times he has promised to completely repeal the ACA on his first day in office, although most experts say that is unlikely and probably not even possible.

Advocates and even some critics of the Affordable Care Act are urging people to go ahead and sign up for a plan for next year despite the fiery campaign rhetoric.

“It is virtually certain that people who sign up now will remain insured through the end of 2017,” said Dr. J. Mario Molina, president and CEO of California-based Molina Healthcare, a Fortune 500 company that has had a strong presence on the exchanges. His is one of three insurance carriers offering plans on the exchange in Houston and said signups have been “brisk” since Nov. 9.

On Monday he said he was sympathetic to the nervousness among those wanting policies. About 11 million people currently get their coverage through the exchange.

“They have good reason to be worried,” Molina said, noting the irony that it took the election of someone who wants to kill the law to get people to sign up for it.

After reporting that 100,000 people signed up for a plan under the ACA the day after the election, U.S. Health and Human Services Secretary Sylvia Burwell tweeted, “Best day yet.”

At the same time, a Facebook group called “Saving Affordable Health Insurance” bubbled up out of another group populated with self-employed writers and editors. The national invitation-only group was created by one woman on Thursday night. By Monday it had more than 1,800 members.

Part of the anxiety is being fueled by the fact no one knows what the replacement piece of repeal and replace will look like, with some wanting a quick and complete gutting while others preferring a slower, piecemeal approach.

“I’m not sure they know,” Molina said about Trump and Congress.

In recent days Trump has softened his stance on the ACA and said he favors keeping certain parts, such as allowing young adults to remain on their parents’ policies until age 26 and prohibiting insurers from denying anyone for a pre-existing condition.

The latter could prove the thorniest since he and others have also vowed to discard the individual mandate, which forces nearly all to buy health coverage. The requirement for universal coverage was baked into the law to expand the risk pool and make it possible to cover people no matter their health. It may be difficult to achieve one without the other.

Sure is gonna suck when millions of people lose their insurance, isn’t it? On the bright side, maybe Texas won’t lead the nation in the percentage of uninsured people once Obamacare has been repealed. Hey, you have to find your silver linings where you can. Political Animal has more.

Republicans take their desperate shot at limiting same sex marriage



After coming out on the losing end of a United States Supreme Court decision legalizing same-sex marriage, Texas Republican leaders are now looking to the Texas Supreme Court to narrow the scope of that landmark ruling.

Gov. Greg Abbott, Lt. Gov. Dan Patrick and Texas Attorney General Ken Paxton on Thursday filed an amicus brief with the Texas Supreme Court urging the all-Republican court to reconsider a Houston case challenging the city’s benefits policy for married same-sex couples. It appears they’ve set their eyes on the Houston case as a way to limit the effect of the high court’s ruling.

The Texas Supreme Court has already had a say in the case challenging Houston’s benefits policy, which was extended to same-sex spouses of city employees. In a 8-1 ruling, the court in September declined to take up the case, letting stand a lower court decision that upheld the benefits for same-sex couples.

In asking the Texas Supreme Court to re-open the Houston case, state’s leaders in their brief also urged the court to clarify that the case that legalized same-sex marriage, Obergefell v. Hodges, does not “bind state courts to resolve all other claims in favor of the right to same-sex marriage.”

In Obergefell, the U.S. Supreme Court in 2015 ruled that marriages between couples of the same sex cannot be prohibited by states, overriding Texas’ long-standing ban on same-sex marriage.

Abbott, Patrick and Paxton in their brief argue that Obergefell does not include a “command” that public employers “take steps beyond recognizing same-sex marriage — steps like subsidizing same-sex marriages (through the allocation of employee benefits) on the same terms as traditional marriages.”

See here and here for the background. I have no idea why they think the Supreme Court is any more likely to take this up now than the last time, but what do I know. And if this does somehow make it past the State Supreme Court, I have a feeling the federal courts will be there to swat it back down. I don’t even know what to say at this point, so go read this statement from Equality Texas about this fiasco. The Press and the Current have more.

Republicans join Woodfill’s ridiculous anti-spousal benefits crusade

Shoveling sand against the tide.


Fifty Republican members of the Texas Legislature have signed a court brief arguing that the same-sex spouses of government employees shouldn’t be entitled to health insurance and other benefits.

The “friend-of-the-court” brief was submitted Friday in a lawsuit brought by anti-LGBT activists against the city of Houston in response to then-Mayor Annise Parker’s decision to extend benefits to the same-sex spouses of city employees in 2013.

Last month, the Texas Supreme Court refused to hear the case, Pidgeon v. Parker, with only Justice John Devine dissenting. But Jonathan Saenz, president of the anti-LGBT group Texas Values, and former Harris County GOP chair Jared Woodfill have petitioned the nine-member court for a rehearing.


The brief argues that while the U.S. Supreme Court ruled in 2015 in Obergefell v. Hodges that same-sex couples have a right to marry, “nothing in that ruling compelled the taxpayers of Texas to pay for a vast array of benefits for same-sex spouses.”

“This Court has the opportunity to diminish federal tyranny and re-establish Texas Sovereignty,” the brief states. “The people have already spoken on the issue through the Texas Legislature. It would be a detriment to their constituents if this elected Court were to remain silent.”

LGBT advocates have said that under Obergefell, if a government employer offers any spousal benefits, it must offer them equally to same-sex and opposite-sex couples. They’ve also said they believe it is unlikely the state’s highest court will reconsider its decision.

See here for the background. The list of Republicans who signed on mostly includes the usual suspects, but there were a few names that disappointed me. Putting that aside, I have to ask, how does this even make sense? Does anyone really think that Obergefell will be interpreted as “OK, fine, you can get married, but you can’t get health insurance or be named the primary beneficiary of a retirement fund unless you get hetero married”? Forget about any cockamamie legal theory for this, what kind of person thinks this makes sense? (By the way, that cockamamie legal theory, as espoused by the one Supreme Court Justice out of nine that originally voted to rehear the appeal, is that hetero marriage counts for more and can be privileged by the state because of procreation; this argument was explicitly rejected by the federal courts and SCOTUS in the Obergefell case. So you can see what kind of a future this would have if it somehow got accepted here.) The Statesman has more.

Jared Woodfill never stops never stopping

Here we go again.


Fifteen months after the U.S. Supreme Court made marriage equality the law of the land, anti-LGBT groups in Texas are still fighting the decision.

Jonathan Saenz, president of the right-wing lobby group Texas Values, and Houston anti-LGBT activist Jared Woodfill announced Tuesday that they’re again asking the Texas Supreme Court to hear their lawsuit seeking to block the same-sex spouses of government workers from receiving health care and other benefits.


In their motion for a rehearing, Saenz and Woodfill argue that Obergefell should be interpreted narrowly because it violates states’ rights under the 10th Amendment, has no basis in the Constitution and threatens religious freedom.

“It is clear that the current Supreme Court will continue to use its power to advance the ideology of the sexual revolution until there is a change of membership,” Saenz and Woodfill wrote. “It is well known that the homosexual rights movement is not content with the judicial imposition of same-sex marriage in all 50 States; it is also seeking to coerce people of faith who oppose homosexual behavior into participating in same-sex marriage ceremonies.”

Ken Upton, senior counsel for the LGBT civil rights group Lambda Legal, told theObserver that Saenz and Woodfill are “more to be pitied than censored.”

“Obergefell requires the government to treat all married couples the same,” Upton said. “Obergefell doesn’t say that a government employer has to offer any married couple spousal benefits, but if it chooses to do so it must offer the same benefits to all married couples not just the different-sex ones. The government does not get to privilege straight couples over gay couples.”

If the Texas Supreme Court were to take the case and rule in favor of Saenz and Woodfill, the city of Houston could appeal the decision directly to the U.S. Supreme Court, Upton said.

“But let’s be realistic,” he added. “The Texas Supreme Court is not going to grant rehearing. My take is that the Texas Supreme Court is done with marriage. I don’t think there’s much appetite to re-engage that discussion.”

See here for the background. Some things call for logic and reason, some for scorn and derision, and for some all one can do is stare in slack-jawed amazement. That’s all I’ve got on this one.

Obamacare: Still working

Down doobie doo down down

It's constitutional - deal with it

It’s constitutional – deal with it

Texas’ rate of uninsured people fell to 17.1 percent in 2015 as part of a steady decline in the share of uninsured residents following the implementation of the Affordable Care Act, according to new Census estimates released Tuesday.

The state’s rate of uninsured fell two percentage points from 2014 to 2015, but Texas still has the highest percentage of people without health insurance in the country. Texas is also home to the largest number of uninsured people in the country with about 4.6 million uninsured residents.

About 5 million Texans were uninsured in 2014, or 19 percent. That’s down from 5.75 million the year before. The 2014 rate — part of the first comprehensive Census data to include a full year of enrollment under President Obama’s signature health law — marked the first time Texas’ uninsured rate fell below 20 percent in more than a decade.

Advocates for the uninsured have argued that Texas could grant insurance coverage to more than 800,000 adults living in poverty here if the state were to expand Medicaid — an optional tenet of the federal health law. But the state’s Republican leadership remains vehemently opposed to any sort of expansion. They’ve criticized Medicaid, the federal-state insurer for the poor and disabled, as an inefficient and broken program.

Also, too:

The number of Americans without health insurance declined to 9.1 percent last year, according to federal data released Tuesday. A set of maps released by the Census Bureau suggests an obvious way to decrease the uninsured rate even more: expand Medicaid in the 19 states that haven’t.


The report notes that the uninsurance rate decreased among poor people in both kinds of states. The drops in the uninsured rate were bigger for people who made below the poverty level or up to 399 percent of the poverty level in states that expanded Medicaid. Not all the uninsured in each state would qualify for insurance, but a Kaiser Family Foundation analysis, based on last year’s data, found that 19 percent of the population of those states that haven’t expanded Medicaid — close to 3 million people — fell in the coverage gap and would be eligible if Medicaid were expanded.

If it seems like I post this same basic story – with slightly different numbers – every few months, it’s because I do. That’s because the uninsurance rate continues to decline, and the lack of Medicaid expansion is the main reason why it hasn’t declined further than it has. Some 800,000 more Texans could have access to health care if we expanded Medicaid, and that would bring along a long list of other benefits as well. But we haven’t and we won’t, at least not with our current leadership, because they just don’t care about these people. So I’ll keep repeating myself, if only to serve as an ongoing reminder of this.

Oh, and one last thing:

A federal judge faulted the state Medicaid program in a strongly worded order, ruling the program had improperly denied 2,000 out-of-network emergency claims submitted by a nonprofit health care provider that treated indigent children.

U.S. District Judge Keith Ellison ruled last week that the state had failed its obligation to reimburse out-of-network services under the Medicaid Act.

“Without intervention from the Court, the State will continue to refuse to reimburse Legacy for such services,” he wrote.

In May, Ellison found the state had unlawfully handed off in-network reimbursement duties to a managed care organization. The latest ruling came on the second set of arguments by Legacy Health.

Maybe the reason our state leaders hate Medicaid so much is because they’re so lousy at it.

State Supreme Court declines to hear lawsuit over city’s same-sex partner benefits

I had totally forgotten this was still a thing that was happening.


The Texas Supreme Court has declined to hear a case challenging Houston’s extension of health and life-insurance benefits to same-sex spouses of married employees, calling an apparent end to three years of legal battles over the policy change.

Houston began offering employment benefits to spouses of all married couples in November 2013, following a U.S. Supreme Court ruling that overturned the federal Defense of Marriage Act.

Then-Mayor Annise Parker’s move prompted three lawsuits, two from conservatives who argued the policy violated Houston’s city charter, the Defense of Marriage Act and the Texas Constitution.

State District Judge Lisa Millard twice signed a temporary restraining order blocking the city from offering the benefits, most recently in November 2014.

Texas’ 14th Court of Appeals lifted that injunction last summer after the U.S. Supreme Court legalized same-sex marriage nationwide in the case Obergefell v. Hodges.

Conservative activists Jared Woodfill and Jonathan Saenz later appealed that decision, arguing that “there is no ‘fundamental right’ to spousal employee benefits.”

See here, here, and here for some background. The federal lawsuit was officially dismissed on July 6, 2015, but there remained a state-court lawsuit. You can see its full history at the Supreme Court level here. According to the Chron story, Woodfill intends to ask for a rehearing. I have no idea what he thinks he can accomplish at this point, but no one ever said Jared Woodfill was a rational being, and as Mark Joseph Stern at Slate observed, there was at least one Supreme Court justice (John Devine, of course) who really pines for the day when all those icky gay people had to hide themselves in closets. People like that are thankfully part of a shrinking minority these days, but don’t kid yourself into thinking they’ll ever truly go away. The Press has more.

The Latino health insurance enrollment gap in Texas

We have made great strides in reducing the uninsured rate in Texas thanks to the Affordable Care Act, but there’s still a lot of work to do.

It's constitutional - deal with it

It’s constitutional – deal with it

The percentage of Hispanics in Texas without health insurance has dropped by 30 percent since the Affordable Care Act (ACA) went into effect, but almost one-third of Hispanic Texans ages 18 to 64 remain uninsured.

That’s one of the conclusions of a new report released today by Rice University’s Baker Institute for Public Policy and the Episcopal Health Foundation.

The report found the uninsured rate among Hispanics ages 18 to 64 in Texas dropped from 46 percent in September 2013 to 32 percent in March 2016. But even with those gains, researchers estimate approximately 2 million Hispanics remain uninsured across the state. However, nearly half of uninsured Texas Hispanics are currently eligible to get health insurance through ACA plans or other private health insurance, the report said.

“We estimate 920,000 Hispanics are eligible for coverage now, even without Medicaid expansion or any other widespread change in coverage,” said Elena Marks, EHF’s president and CEO and a nonresident health policy fellow at the Baker Institute. “This report clearly shows the need for outreach and enrollment efforts to continue to focus on Hispanic Texans who are uninsured but eligible for coverage.”


“After three open-enrollment periods of the ACA marketplace, the uninsured rate among Hispanics is still three times that of whites,” said Vivian Ho, the chair in health economics at Rice’s Baker Institute and director of the institute’s Center for Health and Biosciences, a professor of economics at Rice and a professor of medicine at Baylor College of Medicine. “The disparity between the two groups remains striking. The Hispanic population is growing at a faster rate than the state average, which makes it increasingly important to the entire state that Hispanics gain affordable health insurance coverage.”

The report shows that although more Hispanic Texans remain uninsured, they enrolled in ACA health insurance plans at twice the rate of whites. Researchers found 21 percent of all insured Hispanics in Texas are covered by ACA plans, compared with only 11 percent of whites across the state.

“This shows that the ACA marketplace is an important source of affordable health insurance for Hispanics,” Ho said.

The report is only nine pages, so go take a look at it. I can tell you that the main reasons for the gap are the failure to expand Medicaid, and a still-significant number of people who have not yet enrolled in any plan. The authors recommend more outreach to the latter subgroup, but that’s easier – and a lot cheaper – said than done. There are numerous community and national organizations that have done a ton of hard work informing people about their health insurance and subsidy options, but they do so in an environment where the state government is actively hostile to them. There’s a reason why some states have lowered their uninsured rates a lot more than some others.

Let’s please get the children covered

Surely that’s not too much to ask.

It's constitutional - deal with it

It’s constitutional – deal with it

Five nonprofit organizations and community groups in Texas, including three in the Houston area, have been awarded a combined $4.78 million by the Centers for Medicare and Medicaid Services to boost efforts to enroll the state’s nearly three-quarters of a million uninsured children, the federal agency announced on Monday.

Texas leads the nation not only in the number of overall uninsured but also in the number of children under age 18 who lack health insurance coverage. More than one in 10 Texas children 18 and younger remain uninsured, according to an U.S. Census analysis and other studies.

The awards to Texas organizations are designed to get more eligible children enrolled in Medicaid and the Children’s Health Insurance Program, commonly known as CHIP.

The Texas groups receiving funds are Gateway to Care, a Houston-based collaborative assisting in access to health care; Lone Star Legal Aid, also of Houston; Children’s Defense Fund-Texas in Bellaire; the Bexar County Hospital District’s University Health System in San Antonio; and the Community Council of Greater Dallas.

Surely we can all agree that having healthy children is in everyone’s best interest. That means ensuring that all children have access to health care, including dental care, which in turn means getting all eligible children enrolled in CHIP. The return on the investment is pretty good, but beyond that, it’s just the right thing to do. This is a concrete and relatively inexpensive thing we can do for the children that we claim as a society to value. You would think that for the political party that is obsessed with “unborn” children and imaginary predators in public bathrooms, that enrolling as many eligible children as possible in CHIP would be a no-brainer. Sadly, that self-proclaimed concern form children never seems to extend that far. It’s a good thing we have the federal government and a passel of caring non-profits to step in and fill the gap.

Another story on how Texas’ uninsured rate has fallen under Obamacare

Same book, next chapter.

It's constitutional - deal with it

It’s constitutional – deal with it

A study released Tuesday shows that the rate of Texans without insurance has dropped to its lowest point since the late 1990s because of the Affordable Care Act, Rice University’s Baker Institute for Public Policy and the Episcopal Health Foundation reported.

Prior to the implementation of the ACA in September 2013, the uninsured rate in Texas was about 26 percent – more than one in four. By this March, that rate had dropped to about 18 percent, the study said.

Researchers found declines in every age group, ethnic and racial demographic, and across income levels. Texans between the ages of 50 and 64 showed the steepest decline, dropping to 10 percent from 21 percent during that time period.

Those with low to modest incomes of $16,000 and $47,000 also showed big gains in coverage. Their rate of uninsured is now about 13 percent compared to 23 percent in 2013.

“For more than a decade prior to the ACA, the uninsured rate remained above 20 percent and was rising. It’s now clear that it’s moving in the opposite direction and the ACA deserves the credit,” Elena Marks, president and CEO of Episcopal Health Foundation, said in a statement Tuesday.

Despite progress, Texas continues to lead the nation in the number and rate of the uninsured.

In fact, the new study shines a light on a gaping hole in coverage across the state. Nearly half, or 46 percent, of Texans earning less than $16,000 per year remain uninsured, the report shows.

A copy of the report is here, and a compendium of Baker Institute research on the topic of health insurance under the ACA in Texas is here. Another recent study, by the U.S. Centers for Disease Control and Prevention, had Texas’ rate of uninsured residents below 17%, somewhat lower than what this one has. That may reflect a slight difference in methodology or definitions, it’s hard to say. The trend is clear, and so is the fact that by any measure, Texas is still the worst at getting its residents covered. Even among states that did not expand Medicaid, Texas’ uninsured rate is higher than average, as you can see on that first link. And yes, you can make less than $16K a year but not qualify for Medicaid in this state. Basically, unless you’re a child or you’re disabled, you’re SOL as far as that goes. But don’t worry, you can always go to the emergency room and get some service at a much higher cost to a much smaller tax base. That’s how Greg Abbott and Dan Patrick want it to be. Forbes has more.

Texans say they favor Medicaid expansion

This comes with a huge “but” attached to it.

It's constitutional - deal with it

It’s constitutional – deal with it

More than 60 percent of Texans support an expansion of Medicaid here and plan to take those views into the voting booth in November, a new survey commissioned by the Texas Medical Center Health Policy Institute finds.

The survey results, unveiled Wednesday at the annual Medical World Americas convention in Houston, show the public at odds with the state’s Republican leadership, which has steadfastly refused to consider such an expansion, calling it wasteful and a bad solution.

“I understand people in Austin have been reluctant, but I believe what this survey demonstrates is that people want something done to improve access,” said Dr. Arthur “Tim” Garson, director of the Health Policy Institute. “People are looking for help and their choice seems to be Medicaid expansion. A uniquely Texas solution would be best, but we have to do something.”

The findings further resonate in a state that continues to lead the nation in the number of uninsured. Texas remains one of 19 states that has chosen not to expand Medicaid under the Affordable Care Act.

The second annual Medical Center study gauging public opinion on health care issues covered topics ranging from access to health care to the wisdom of raising the price of foods that contribute to obesity.

Of the 1,000 people polled by Nielsen in five states, close to 100 percent said they feel it is deeply important to have insurance for themselves and their family. In Texas, 96 percent value health insurance.

The study’s margin of error is 3 percentage points overall and close to 5 percentage points in Texas.

Beyond self-interest, 91 percent of respondents in Texas, California, New York, Ohio and Florida said it was important to them that everyone in the nation have health insurance.

The sticking point has always been how to get there.

In Texas, 63 percent of those polled said they support an expanded Medicaid program. Similarly, 68 percent in Florida also favored a Medicaid expansion. These numbers are significant because of the states surveyed, only Florida and Texas did not expand the safety-net program, which is jointly paid for with federal and state dollars.

I couldn’t find a copy of the poll googling around, so you’ll have to take the story at its word. The caveat over this, of course, is that none of it matters until someone loses an election over it. Let me say that again in capital letters, for emphasis: NONE OF THIS MATTERS UNTIL SOMEONE LOSES AN ELECTION OVER IT. Greg Abbott doesn’t care what opinion polls say, and there’s not nearly enough support in the Legislature to push the issue. Various county-level Republicans, who feel the effect of paying for health care for a substantial uninsured population directly, support Medicaid expansion, but again, Greg Abbott doesn’t care what they think. Until someone loses an election because they oppose expanding Medicaid – and by this I mean someone who was otherwise expected to win, not someone who was vulnerable because of varying turnout patterns or other exogenous factors – nothing will change.

The latest good news/bad news on Texas uninsured numbers

Good news: Texas’ percentage of uninsured residents continues to drop. Bad news: It’s still higher than what the national average was in 2010, the year before the Affordable Care Act was passed.

It's constitutional - deal with it

It’s constitutional – deal with it

The percentage of Texans without insurance has dropped dramatically since the launch of the Affordable Care Act, the U.S. Centers for Disease Control and Prevention reported Tuesday. In 2015, the uninsured rate fell to 16.8 percent.

While the state continues to lead the nation in the rate of people who are not covered, advocates for the health care law who have watched its implementation say the headway is undeniable. Prior to the law’s passage in 2010, the Texas rate of uninsured hovered around 25 percent, or one in four.

“This is indeed significant progress,” said Elena Marks, president and CEO of Episcopal health Foundation in Houston. She is co-author of a separate series of ACA tracking reports issued through Rice University’s Baker Institute for Public Policy.

Nationally, the rate of uninsured fell to a historic low of 9.1 percent last year, the National Health Interview Survey released Tuesday found. That translates to about 7.4 million people gaining coverage last year on top of the 8.8 million who signed up in 2014. It is the first time the uninsured rate has slid into the single digits.

In 2010, the national rate of uninsured was 16 percent.

“The historically low rate of uninsured in America reflects people’s desires for health coverage. Americans like having access to health care,” said Ken Janda, president and CEO of Community Health Choice, a nonprofit managed-care organization serving Harris and 19 other Texas counties.


The CDC study shows that last year adults in states that expanded Medicaid were less likely to be uninsured. In those states, the percentage of un-insured decreased to 9.8 in 2015 from 18.4 percent two years earlier. By contrast, the uninsured rate in states like Texas that chose not to expand the program decreased to 17.5 percent last year from 22.7 percent in 2013.

Raise your hand if you’re surprised that the states that have refused to expand Medicaid had the highest rates of uninsured residents pre-Obamacare. I’ve pretty much run out of things to say with these news stories, so fill in your own snarky/heartfelt/cynical comment as appropriate.

SCOTUS punts on birth control lawsuit


Zubik v. Burwell was supposed to be an epic showdown over the power of religious objectors to limit the rights of others. A sequel to the Court’s 2014 decision in Burwell v. Hobby Lobby, Zubik involved regulations expanding women’s access to birth control that the conservative justices appeared to endorse in Hobby Lobby — even as they struck down a more direct method of providing contraceptive coverage to working women.

At oral arguments, however, the four remaining conservatives seemed to have a change of heart. Even Justice Anthony Kennedy, the justice who signaled the loudest in Hobby Lobby that he would tolerate the kind of regulations at issue in Zubik, appeared openly hostile towards the Obama administration’s arguments. The case seemed to be barreling towards a 4-4 non-decision. If conservative Justice Antonin Scalia had not died last February, it is all but certain that the case would have ended in a crushing defeat for the administration and for many women who hoped to benefit from the administration’s birth control rules.

But that’s not going to happen — at least not yet. On Monday, the Supreme Court handed down a brief, three-page opinion that effectively punts the case until next year at the earliest (and, presumably, after someone has been confirmed to fill Justice Scalia’s seat). The opinion explicitly “expresses no view on the merits” of Zubik and a raft of related cases. Instead, it sends these cases back down to the lower courts to consider the views expressed by both parties in supplemental briefing requested by the justices themselves.


As the Supreme Court notes in Monday’s opinion, the administration “has confirmed that the challenged procedures ‘for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.’” However, that’s not the end of the story. The administration also explained to the Court that the justices’ proposed compromise may not work for employers that self-insure (that is, employers who pay out health claims directly to employees rather than joining them into a broader insurance pool).

In any event, the one thing that’s absolutely clear from the Court’s very brief, unsigned opinion inZubik is that it will not resolve any of the nuances of how employers should exempt themselves, what should happen to women who seek birth control after an employer exempts itself, and whether self-insurance or other situations present unique problems that call for a distinct rule. The Court wants this case to go away, at least for now.

See here for the background. This is just amazing. SCOTUSBlog provides some further analysis:

One reading of Monday’s developments was that the Court, now functioning with eight Justices, was having difficulty composing a majority in support of a definite decision on the legal questions. Thus, what emerged had all of the appearance of a compromise meant to help generate majority support among the Justices. With this approach, the Court both achieved the practical results of letting the government go forward to provide the contraceptive benefits and freeing the non-profits of any risk of penalties, even though neither side has any idea — at present — what the ultimate legal outcome will be and, therefore, what their legal rights actually are under the mandate.

Those uncertainties are now likely to linger through the remainder of President Obama’s term in office, which ends next January. The appeals courts may well order the filing of new legal briefs, and may hold new hearings, before issuing a new round of rulings on the controversy. However, the entire future of the ACA, including its birth-control mandate, may now depend upon who wins the presidential election this year and which party has control of Congress when it reassembles in 2017.

The three issues that the Court had agreed to rule on, and then left hanging at least for now, were whether the ACA mandate violates the federal Religious Freedom Restoration Act by requiring religious non-profits that object to contraceptives to notify the government of that position, whether the government had a “compelling interest” in assuring cost-free access to contraceptives, and whether the move by the government to go ahead and arrange access to those benefits for those non-profits’ employees and students was the “least restrictive means” to carry out the mandate.

Doing on Monday much the same that it had done in several temporary orders at earlier stages of this controversy, the Court accepted that the non-profits already had given the federal government sufficient notice of their objection to the mandate, and that the government could use that notice as the basis for going ahead to provide actual access, at no cost, to the employees and students of those institutions.

The unsigned opinion that the Chief Justice announced included an attempt to explain why the Court was bypassing a definitive ruling on the legal issues. It cited the replies that both sides had filed, after the cases had been argued, in reaction to a suggested compromise plan devised by the Court.

The Court on Monday interpreted those filings as containing concessions that move the two sides somewhat closer together, but at the least provided a basis for letting the federal appeals courts be the first to analyze the meaning and impact of those concessions. The Court expressed the hope that the two sides would use this new opportunity, in the appeals courts, to work toward common ground that would protect the religious sensibilities of the non-profit institutions at the same time that women of child-bearing age would not be deprived of contraceptive devices and methods.

“We anticipate,” the Court said, “that the courts of appeals will allow the parties sufficient time to resolve any outstanding issues between them.” That appeared to be an invitation for the lower courts at least to explore whether the two sides could reach agreement without prolonging the court battles. It conceded, though, that there may still be “areas of disagreement” between the two sides.

It may just be my cynicism showing, but I don’t expect any of the litigants to go seeking common ground. This was from the beginning an ideological fight, and they’re not going to settle for anything less than victory. As the Trib noted, the district court in Texas originally found for the plaintiffs, HBU and East Texas Baptist University, but the Fifth Circuit overturned that verdict. I have no idea what happens from here, but I look forward to a Supreme Court with either a Justice Merrick Garland or a President Clinton-named Justice getting the case again in the future. TPM, Dahlia Lithwick, Rewire, and Daily Kos have more.

Feds grant 15 month Medicaid waiver extension

I sure hope they keep the pressure on to expand Medicaid during this time.

It's constitutional - deal with it

It’s constitutional – deal with it

The Obama administration has agreed to temporarily keep some federal Medicaid money flowing into Texas to help hospitals treat uninsured patients, a relief to health care providers that feared losing the funds over state leaders’ refusal to provide health insurance to low-income adults.

State health officials said Monday they have struck a deal with the federal Centers for Medicare and Medicaid Services to keep the program going for another 15 months, with hospital reimbursements remaining at their current level.

Those were the exact terms the Texas Health and Human Services Commission asked for last month. Agency leaders said the negotiations were a “big win for Texas.”

“We’re pleased these innovative programs will have the opportunity to continue,” Chris Traylor, the agency’s executive commissioner, said in a statement. “These programs are improving health care for Texas’ Medicaid clients and creating cost-savings for taxpayers.”


The 15-month extension also includes an additional $3.1 billion for DSRIP initiatives.

The Obama administration had previously signaled it was likely to stop footing the bill for at least some of Texas’ uncompensated care costs. Under the Affordable Care Act, the president’s signature health law, Texas was encouraged to expand its Medicaid program to cover nearly 1 million additional adults living in poverty — a move that would have given more poor patients a means to pay for care. The state’s Republican leadership hasvehemently opposed that option, criticizing Medicaid as an inefficient government program.

Federal health officials were unswayed by that argument, repeatedly telling state leaders they had no desire to use waiver funds to pay for costs that would otherwise be covered by a Medicaid expansion.


Texas health officials say they will continue negotiating a longer term extension of the funding over the next 15 months.

Those negotiations will likely be influenced by a study of the effectiveness of the uncompensated care pool, which the federal government asked Texas to commission. The Texas Health and Human Services Commission contracted with outside firms Health Management Associates and Deloitte to submit the study by the end of August. It will address questions such as how hospitals’ uncompensated care costs would be reduced under a Medicaid expansion.

If Texas and the federal Centers for Medicare and Medicaid Services do not reach an agreement at the end of the 15-month extension, in December 2017, the Obama administration said it “expects” that uncompensated care funding would be reduced after that.

“Specifically, the reduction will limit the size of the Uncompensated Care pool to the costs of uncompensated and charity care for low-income individuals who are uninsured and cannot be covered” under a Medicaid expansion, wrote Vikki Wachino, a senior federal health official, in a letter to the Texas Health and Human Services Commission.

Additionally, the DSRIP pool would be reduced by 25 percent in 2018 and by an additional 25 percentage points each year after that, according to federal officials.

See here, here, and here for some background, and here for a copy of the letter CMS sent to Texas. I don’t really have anything to say that I haven’t said before. Texas needs to expand Medicaid, and if the state continues to refuse to do so, the federal government should not take any steps to mitigate the consequences of that decision. It’s up to the next Legislature now. State Rep. Garnet Coleman, Trail Blazers, and the Austin Chronicle have more.

Two Medicaid stories

From the Trib:

It's constitutional - deal with it

It’s constitutional – deal with it

State health officials confirmed Tuesday they have asked the Obama administration to keep a 15-month lifeline of federal Medicaid money flowing into Texas to help hospitals treat uninsured patients.

That money would offer temporary relief to health care providers who face losing the funds — some $3.1 billion annually — over state leaders’ refusal to provide government-subsidized health coverage to low-income adults under the Affordable Care Act, President Obama’s signature health law.

Federal officials previously signaled they would stop footing the bill for at least some of Texas’ costs for “uncompensated care” — the burden on hospitals when patients can’t pay for their visits. Under the Affordable Care Act, Texas was encouraged to expand its Medicaid program to cover nearly 1 million additional adults living in poverty — a move that would have given more poor patients a means to pay for care. The state’s Republican leadership has vehemently opposed that option, criticizing Medicaid as an inefficient government program.


First created as a $29 billion pot of money paid to Texas health care providers over five years, about 40 percent of that money came from local funds — mostly property tax dollars — and 60 percent from the federal government. The Obama administration approved the program in 2011, and it was set to expire in September.

By asking for the program to be renewed for a significantly shorter timeframe, state health officials indicated that they expect the federal government will be reluctant to continue handing out cash to reimburse hospitals for patients who can’t pay for their visits. Federal health officials have repeatedly told state leaders they have no desire to use waiver funds to pay for costs that would otherwise be covered by a Medicaid expansion.

In Florida, the Obama administration recently agreed to extend a similar source of hospital funding in that state, but only for two years and at a significantly reduced rate. That arrangement diminished the state’s low-income pool by about 50 percent for the first year and 70 percent for the second.

See here and here for some background, and here for a copy of the letter. This is the 1115 waiver, and I’ve been rooting for the feds to tell Texas to go pound sand unless they expand Medicaid. This is at least a step in that direction.

And from Think Progress:

The Obama Administration just sent a strong signal to states trying to defund Planned Parenthood, warning all 50 states that attempts to strip Medicaid funding from the women’s health care provider is most likely illegal.

The letter, sent to each state’s Medicaid director, cautions lawmakers that “providing the full range of women’s health services… shall not be grounds for a state’s action against a provider in the Medicaid program.” In other words, the fact Planned Parenthood provides abortion services in addition to other women’s health services is not legal grounds to cut it off from Medicaid funding. It stipulates that the only justifiable reason to remove a provider’s Medicaid funding is if that provider isn’t able to bill for or perform covered medical services.

“Once again, the Centers for Medicare and Medicaid Services has made it clear that it’s illegal for politicians to tell women where they can and cannot go for care,” said Cecile Richards, President of Planned Parenthood, in a statement.


The Obama Administration has warned specific states before that cutting off Medicaid funding for Planned Parenthood may violate federal law, but this is the first time that they have sent a letter to every state in the country.

As we know, Planned Parenthood has filed a lawsuit against Texas after it announced it was cutting PP out of any program it hadn’t already cut them out of as punishment for those faked videos by the fraudsters Daleiden and Merritt. I don’t know what effect, if any, this federal action will have on that, but I do know we could easily solve all these problems (and more) if Texas would expand Medicaid and obey the law. It’s all so simple, really.

Weekend scandal news roundup

If anything comes from the Texas Rangers investigation into his questionable expenditures, Ag Commissioner Sid Miller would be prosecuted in Travis County.

Sid Miller

If embattled Texas Agriculture Commissioner Sid Miller is prosecuted for misusing government funds, his trial would be in Travis County, officials said Friday, despite a new law that sends some corruption cases against state officials and employees to their home counties.

Before December, the public integrity unit in the Travis County district attorney’s office investigated and prosecuted alleged corruption by state officials and employees. House Bill 1690 changed that, moving investigation of accusations such as bribery, gifts to public servants, perjury and tampering with government records to the Texas Rangers, a division of the Texas Department of Public Safety. Under the new law, charges can be brought in the official or employee’s home county.

The Rangers are investigating Miller for two February 2015 trips he reportedly took on the state’s dime. Liberal advocacy group Progress Texas requested an investigation into Miller’s state-paid trips, following reports that he participated in a rodeo and received an injection called the “Jesus Shot” while he was supposed to be on the job.

But if Miller’s case leads to a prosecution, it wouldn’t be heard in his home county of Erath because the events in question occurred before the new law took effect in December, officials from DPS and the Travis County district attorney’s office told the Tribune.

See here for an apparently inoperative discussion of the issue. I’m sure Miller would prefer it that way, since it will be much easier for him to complain about political motivations if it’s the Travis County DA and not the Erath County DA prosecuting him.

In the meantime, the Travis County DA already has an investigation going on.

The Texas state auditor’s office has referred its investigation into possible misuse of state workers by state Rep. Dawnna Dukes to Travis County prosecutors, the Austin American-Statesman reported late Friday.

The Texas Tribune reported in February that the auditor’s office was investigating Dukes’ use of state workers for her personal project, the African American Heritage Festival, a nonprofit event Dukes has overseen for 17 years.

The auditor’s investigation was prompted by complaints from Dukes’ former chief of staff, Michael French, who approached House officials in January with concerns about the legality of the staff’s work on the festival.

Dukes acknowledged her staff worked on the festival but said their role was minimal. A Jan. 12 email obtained by the Tribune shows Dukes directing her staff to make the festival a priority.

“Festival is all hands on priority,” Dukes wrote in the email. “I don’t want any delays or fall throughs.”

Two members of Dukes’ staff also expressed concerns over personal errands the lawmakers asked them to run, a list that included smoothie runs, vet visits and babysitting. One staffer moved in with Dukes for three months last summer in exchange for helping the Austin Democrat care for her daughter.

Something to keep in mind amid all the calls for Ken Paxton and Sid Miller to resign. Want another reason to be wary of such an outcome? Here you go.

Texas doesn’t have a cabinet form of government, but in Gov. Greg Abbott’s case, it might soon have the next best thing.

Two of the state’s relatively new elected officials — Attorney General Ken Paxton and Agriculture Commissioner Sid Miller — are in deep political trouble at the moment. If worst comes to worst for either or both of those fine gentlemen, Abbott would appoint their replacements.

That’s a lot more say than he had when they won the positions in 2014.

Yeah, I don’t want that. From a purely partisan perspective, it’s much better for Paxton and Miller to stay where they are and be embarrassments to the rest of the GOP than to let Greg Abbott swoop in and clean up the mess.

And finally, let’s get back to Ken Paxton for a minute.

The state is paying thousands of dollars in salaries and benefits to at least two former high-level staffers in Attorney General Ken Paxton’s office who haven’t worked there for over a month.

Charles “Chip” Roy resigned as first assistant attorney general March 9 but remains on the state’s payroll. He received his full month’s salary of $16,220.62 on April 1, according to the state comptroller, and remains on the payroll as an employee of the state even while working a new job for a national political committee.

Roy declined to comment about the payment arrangement, which the agency confirmed Wednesday after The Dallas Morning News raised questions. Despite its earlier public statement that Roy resigned, an agency spokeswoman said Thursday that he’s also on “emergency leave.”

“Roy resigned on March 9th. He is currently on emergency leave through June 10th,” spokeswoman Cynthia Meyer said late Thursday.

If Roy’s arrangement continues until then, he will make $48,660 for the three months of emergency leave.

The agency at first offered no further explanation of the reason for the leave. When asked to clarify the emergency, Meyer said: “I’m not sure the answer.”

Texas’ “emergency leave” law says a state employee who has experienced a death in the family can take time off without seeing his or her pay cut. Agency heads also can approve other reasons for emergency leave if the employee “shows good case to take emergency leave.”

Employment law prohibits state workers from pulling down full-time salaries if they don’t work at least 40 hours a week for a public entity. There is no severance for workers who leave state employment, and the law that gives agency heads discretion in granting administrative leave also caps such time at 32 hours per year.

Austin-based campaign finance and ethics attorney Buck Wood questioned the arrangement.

“So, the emergency wasn’t so great that this person can’t work, or has any problems working? They just want to give her or him the money,” said Wood, who was not told the name of the individual or the agency in question. “This person obviously didn’t provide ‘good cause’ because they’re working. They’re just feeding you a line.”

So what was the emergency? Chip Roy needed health insurance.

Former First Assistant Attorney General Chip Roy on Friday defended receiving thousands of dollars in salary and benefits after leaving the attorney general’s office to join a pro-Ted Cruz super PAC.


Roy’s statement indicates that he will receive much less than that because he took the leave option partly for medical reasons that were resolved Thursday.

“The terms of my resignation included from the OAG [office of the attorney general] an option for leave beyond my earned vacation and holiday time,” Roy said in the statement. “The primary benefit to me would have been healthcare coverage in light of being in the five-year window after Stage 3 Hodgkins Lymphoma. My plan has been to go off payroll at OAG using only my earned vacation and holiday time unless it were absolutely necessary to stay on pending the uncertainty of medical tests and subsequent employment. Yesterday I was blessed to receive an all-clear from my Oncologist and my complete departure from the OAG is effective at the time of the expiration of only earned vacation and holiday time.”

So a former top lieutenant of the Texas Attorney General’s office is worried about not having health insurance. Let that sink in for a minute. Then go read what Lize Burr has to say.

Let me put it this way:

Chip Roy was given the option to keep his state-paid health insurance past the normal point of his compensation because he was facing health uncertainty.

Now we come to the genuinely important news this week from the Center for Public Policy Priorities. It’s very simple and completely awful: 1.7 million Texas children live in poverty. 1.7 million children. That means 1.7 million children being raised by adults living in poverty. Mothers, fathers, grandparents, guardians. All in poverty.

And what is one of the greatest threats facing Texas families living in poverty? The cost of health care. Not just the kids’ health care–the parents’ health care. Texas has both the highest number and rate of adults with no medical insurance. These Texans live with an uncertainty that borders on a form of terror. And that is fear is shared by everyone in the home.

Chip Roy probably understands that fear. It’s probably the reason his employer was willing to place him on a special type of leave that continued his state-paid insurance while he was facing health unknowns. That was a humane act that I can understand. However, for a Republican office holder who is committed to the overturning the ACA and is against Medicaid expansion for low income Texas–the rejection of which costs the state of Texas $6 billion in uncompensated care a year–making that gesture isn’t a sign of compassion. It’s hypocrisy of the highest order.

I can’t say it any better than that.

If we really cared about improving mental health in Texas

We would have expanded Medicaid at our first opportunity.

It's constitutional - deal with it

It’s constitutional – deal with it

Federal health officials say people with mental illness and addictions are being left behind in Texas because the state hasn’t expanded Medicaid to more low-income adults.

The health care program for the poor is controversial for many Republicans. The U.S. Supreme Court ruled that expansion was a voluntary part of the Affordable Care Act, and 19 states have declined to expand it.

A new federal report estimates that expanding Medicaid in Texas could help 406,000 mentally ill and uninsured Texans get treatment, according to Richard Frank, an Assistant Secretary for Planning and Evaluation at the U.S. Department of Health and Human Services.

“If states are serious about addressing mental illnesses, opioids, and other substance use disorders, expanding Medicaid offers a unique opportunity to do so,” Frank said in a national conference call with reporters. “It will bring people into effective treatment and is fully paid for under the Affordable Care Act.”

The new federal report discusses how untreated mental illness affects homelessness, job productivity, and jails and prisons. The report says states that did expand Medicaid were able to save money on programs for mental health or the uninsured, or divert the money to other programs.

A copy of the report is embedded at the link above. This is the same song we’ve been singing since 2011, with this being roughly the 1000th verse. The positive effect of getting access to reliable mental health care for these people cannot be overstated – among many other things, it would keep a lot of so-called frequent flyers out of jail – but the state Republican leadership does not care and will not hear it. You know how whenever there’s another gun massacre, the only thing we’re all allowed to say is that we should do more to promote mental health as a way to maybe not have so many gun massacres? The part we’re not allowed to say is that the Republicans in this state won’t do a damn thing to actually promote mental health. It’s the same old story, and the only way it ends is with electing different leaders. The Statesman has more.

Once more with SCOTUS and birth control

Here we go.

In another major case concerning Texas women’s reproductive care, the U.S. Supreme Court on Wednesday will consider if the right to religious freedom is broad enough to completely exempt nonprofits with religious objections to birth control from providing women access to it through their insurance plans.

The case, formally known as Zubik v. Burwell, pits religious nonprofit groups — including East Texas Baptist University and Houston Baptist University — against the federal government over a provision of the Affordable Care Act requiring some employers to provide contraceptive coverage to female workers.

The Texas case is among seven related lawsuits the high court agreed to hear together in which religious nonprofits argue the mandate infringes on their religious freedom. The Obama administration says the groups are offered a way around the requirement through a mechanism that still gives women access to free contraception.

Under the federal health care act, employers with 50 or more full-time employees are required to offer health plans with “minimum essential coverage,” including access to federally approved contraception for women, without co-payments or deductibles.

Religious nonprofits can seek “accommodations” to be exempted from the contraceptive mandate by submitting a form or notification certifying the organization’s objection on religious grounds. Doing so transfers the administrative duties of providing contraception coverage from the employer to the insurance company or a third party, which takes over handling the claims.

But the nonprofits argue they should be exempted from the requirement altogether because they are still “being forced to facilitate access” to contraceptives they oppose. In this case, the religious groups object to emergency contraceptives, including the so-called morning-after-pill, and intrauterine devices, which they liken to so-called “abortifacients” — or drugs that induce an abortion. (Health experts and scientists have disputed that claim.)

That parenthetical statement really understates the matter. People are free to believe what they want, but when those beliefs are contradicted by objective reality, I’m not sure why the law needs to accommodate them. Too bad I’m not on the Supreme Court.

Anyway. I’ve been following the HBU/East Texas Baptist lawsuit from the beginning – see here, here, and here for the basics, and remember that the full Fifth Circuit – yes, that Fifth Circuit – refused to uphold the initial lower court ruling in HBU’s favor.

Given the current composition of the Court, the fact that nearly every appeals court rejected the plaintiffs’ arguments, and the way things went with the HB2 case, there was a fair amount of optimism going into this one that the good guys would prevail. Unfortunately, it looks like perhaps the Bad Anthony Kennedy showed up for oral arguments.

In Burwell v. Hobby Lobby, the last major case brought by religious objectors to birth control, the Court’s five justice conservative majority effectively wrote the “substantially burden” requirement out of the law. As Justice Samuel Alito wrote for the Court in that case, the Hobby Lobby plaintiffs “sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial.”

It quickly becomes clear during the Zubik argument, however, that the Court’s four justice liberal bloc wants to put the words “substantially burden” back into the law. Justice Sonia Sotomayor notes that, under the conservatives’ truncated reading of RFRA, it is unlikely that a plaintiff would ever fail to show a substantial burden because “we’re not asking you to do anything except identify yourself.” Justice Stephen Breyer even goes so far as to wax philosophic about how much easier life was in the few years before RFRA was enacted.

Kennedy, however, wants no part of this project to make “substantially burden” mean something again. “It seems to me that there is a substantial burden” in this case, Kennedy tells Solicitor General Don Verrilli in an uncharacteristically candid moment. About a minute later, Kennedy is even more candid, disclosing that he believes that this entire case comes down to whether the government could have used a less restrictive alternative (the third prong of RFRA) to provide birth control to women whose employers object to birth control.

For most of Verrilli’s time at the podium, however, Kennedy is sphinx-like, saying little and revealing little about whether he believes the government has made its case. Chief Justice John Roberts and Justice Alito spend this period taking shots at Verrilli. At a major argument over abortion earlier this month, the Court’s conservative wing appeared stilted and unsure how to seize the offensive with Scalia absent from the bench. Today, with Scalia’s seat literally absent from the Courtroom and just eight chairs facing the audience and the attorneys, it was clear that Roberts and Alito had their mojo back.

In their briefs, the religious objectors argue that requiring them to fill out a form in order to receive a contraceptive plan is not the “least restrictive means” of ensuring access to birth control. The government could have created a new birth control entitlement program funded by taxpayers (an alternative that Kennedy briefly appears skeptical of), or they could have offered birth control-only plans in the Affordable Care Act’s health care exchanges to women whose employers refuse to provide them with contraceptive coverage.

Alito focuses on the later of these two opinions, in a series of questions for Verrilli that can fairly be described as combative and nasty. At one point, Alito demands to know how the government can claim that Obamacare’s exchanges are “so unworkable” that they cannot provide an alternative for women that need birth control-only plans. It’s the sort of remark that seems more at home on Fox News than in the Supreme Court of the United States, and its delivered in a tone that seems to betray Alito’s bitterness over the fact that he has twice tried and failed to gut Obamacare by judicial decree.

In response, Verrilli argues that offering birth control-only coverage in the exchanges would not be a workable solution. For one thing, it’s not currently legal to sell such single-subject plans in the exchanges. For another, it’s far from clear that any private insurer would agree to offer such a plan. And even if they did, there’s no guarantee that a woman would be able to buy a plan that included the same doctors she relies upon for other medical care. This could lead to a world where a woman’s regular physician would be unable to prescribe contraception or even counsel the woman on many issues related to her reproductive health. And it would add an additional layer of complication that would discourage many women from seeking out contraceptive care.

Roberts, meanwhile, embraces the religious objectors’ argument that the government is “hijacking employers’” health plans via its fill-out-the-form regulation. This proves to be a very effective argument for Roberts, largely because it appears to sway Kennedy near the end of Verrilli’s time at the podium. In response to Verrilli’s attempt to explain some of the details of how the fill-out-the-form rules operate, Kennedy snaps back “that’s why it’s necessary to hijack the plans!”

In contentious cases, Kennedy often appears to play the role of Hamlet, asking questions of both sides and giving off an air of uncertainty about how he will ultimately vote. But when Kennedy shows real emotion in one of his questions, or when he adopts the loaded language of one of the parties, that’s normally a good sign that he’s made up his mind. When the votes are cast and the Court’s decision is released, it’s a good bet that Kennedy will vote against Team Birth Control.

Yeesh. The good news from our perspective in Texas is that a 4-4 split would leave the Fifth Circuit ruling against the plaintiffs in place. That’s a small consolation for anyone in a state governed by the Eighth Circuit, which was the one to buy into that dumb argument, of course. Perhaps some day we can get a ninth Justice confirmed and settle this once and for all. In the meantime, this may be the best we can do. Have I mentioned that this election is super important? A transcript of the oral arguments is here, while TPM, SCOTUSBlog, Kevin Drum, and the Trib have more.

Why are some people more likely to smoke than others?

From the CDC:

American adults who are uninsured or on Medicaid smoke at rates more than double those for adults with private health insurance or Medicare, according to a study published by the Centers for Disease Control and Prevention in today’s Morbidity and Mortality Weekly Report (MMWR).

Data from the 2014 National Health Interview Survey (NHIS) show that 27.9 percent of uninsured adults and 29.1 percent of Medicaid recipients currently smoke. By contrast, 12.9 percent of adults with private insurance and 12.5 percent of those on Medicare currently smoke.

“Smoking kills half a million Americans each year and costs more than $300 billion,” said CDC Director Tom Frieden, M.D., M.P.H. “This report shows real progress helping American smokers quit and that more progress is possible.”

The study reported that the prevalence of cigarette smoking among U.S. adults declined from 20.9 percent to 16.8 percent from 2005 to 2014, including a full percentage-point decline between 2013 and 2014 alone. The considerable drop in the overall adult smoking rate over time shows marked progress toward achieving the Healthy People 2020 goal of reducing the cigarette smoking rate to 12 percent or lower. Another major finding was that the average number of cigarettes smoked per day among daily smokers declined from 16.7 in 2005 to 13.8 in 2014 — driven by declines in the proportion of daily smokers who smoked 20 or more cigarettes per day.

At-risk populations

The study found other differences in smoking rates consistent with previous studies. In 2014, prevalence of cigarette smoking was higher among these groups:

  • Males (18.8 percent vs. 14.8 percent for females)
  • Adults ages 25-44 years (20.0 percent)
  • Multiracial (27.9 percent) or American Indian/Alaska Natives (29.2 percent)
  • People with a General Education Development certificate (43.0 percent)
  • People who live below the federal poverty level (26.3 percent)
  • People who live in the Midwest (20.7 percent)
  • People who have a disability/limitation (21.9 percent)
  • People who are lesbian, gay, or bisexual (23.9 percent)

“These findings underscore the importance of ensuring that proven strategies to prevent and reduce tobacco use reach the entire population, particularly vulnerable groups,”said Brian King, Ph.D., deputy director for research translation, CDC Office on Smoking and Health. Comprehensive smoke-free laws, higher prices for tobacco products, high-impact mass media campaigns, and barrier-free access to quitting help are all important. They work to reduce the enormous health and financial burden of tobacco use and secondhand smoke exposure among Americans.”

Changes in the U.S. health-care system continue to offer opportunities to improve the use of clinical preventive services among adults. The Patient Protection and Affordable Care Act of 2010 is increasing the number of Americans with health insurance and is expected to improve tobacco cessation coverage.

Currently, neither private insurers nor state Medicaid programs consistently provide comprehensive coverage of evidence-based cessation treatments. In 2015, although all 50 state Medicaid programs covered some tobacco cessation treatments for some Medicaid enrollees, only nine states covered individual and group counseling and all seven FDA-approved cessation medications for all Medicaid enrollees. Cessation coverage is used most when smokers and health-care providers know which cessation treatments are covered.

I find this fascinating. I’m old enough to remember when smoking was ubiquitous – I’ve experienced the smoking section of airplanes and restaurants – but nowadays not only do I hardly know any smokers, most of the people I know are militantly anti-smoking. The combination of government action and peer pressure has basically made my life, and the lives of most people I know, a non-smoking zone. Which, from my perspective, is awesome. But that yields a big question: Why is it that this effort has been so much more successful among some parts of society than others? What is it that we’ve been doing wrong, or doing inadequately? There’s a huge societal cost to smoking, so figuring this out would be a big deal. I hope the next study focuses on that question.